A man who was convicted of sexually assaulting a six-year-old girl who attended his religious education class has had his sentence increased after the Director of Public Prosecutionsappealed the sentence on grounds of undue leniency.

Increasing the 14-month sentence to one of four-and-a-half years, Mr Justice Patrick McCarthy found that the sentencing judge had erred in identifying a headline sentence of two years for the offence, and had placed too much weight on mitigating factors.

Background

Abdur Rashid was found guilty of a single count of sexual assault contrary to common law as provided for by s.2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended by section 37 of the Sex Offenders Act 2001.

The victim was a six-year-old girl who attended Mr Rashid’s religious education class.

In the Circuit Criminal Court, Mr Rashid was sentenced to eighteen months with the final four months suspended for one year.

Grounds of Appeal

The Director of Public Prosecutions brought an application pursuant to s.2 of the Criminal Justice Act 1993 seeking a review of the sentence on grounds of undue leniency.

The DPP submitted that the sentencing judge erred:

In law by setting the headline sentence in this case at two years’ imprisonment;

In law by not taking sufficient account of the aggravating factors in this case;

In law by placing too much weight on the mitigating factors in this case;

In imposing a sentence which did not reflect the seriousness of the offending.

Reference was made to DPP v MS [2014] IECA 58, in which the accused was sentenced to three years’ imprisonment with the final six months suspended. Mr Justice McCarthy said that DPP v MS [2014] IECA 58, with a two-year starting point sentence, shared several features with the instant case: a breach of trust, non-penetrative touching, a young complainant, and significant victim impact.

However, Mr Justice McCarthy said there were also some differences:

The victim in MS was touched over her clothing, whereas Mr Rashid touched his victim inside her underwear, skin to skin.

The victim in MS was fifteen, whereas the victim in the present case was six years old.

While both cases involved a breach of trust, the breach of trust in MS was a friend of the victim’s father, whereas Mr Rashid perpetrated the breach of trust in the instant case while he was in a position of authority, a teacher.

Reference was also made to DPP v Walsh [2017] IECA 187, in which the Court of Appeal held that the sentencing judge had not erred in setting a headline sentence of 7 years. Allowing for a discount of 15 per cent for his guilty plea before the victim had to testify, and his expression of remorse, this was reduced to 6 years.

Too much weight placed on mitigating factors

Considering the weight placed on the mitigating factors in Mr Rashid’s case (i.e. Mr Rashid’s background and family history, his psychological vulnerability (which was no longer a factor), that he was a foreign national, his lack of previous convictions, the impact on his family, and the fact of being placed on the Sex Offender’s Register), the sentencing judge had allowed for a 25 per cent discount for mitigation and further suspended the final four months of Mr Rashid’s sentence.

On Mr Rashid’s “psychological vulnerability”, Mr Justice McCarthy explained that there was no record of any sustained evidence of cognitive impairment or concerns regarding his intellectual functioning during his admission to hospital for short-term mental health difficulties over a year after the offence. Further, it was stated that Mr Rashid was “malingering when examined”.

Mr Justice McCarthy explained that there was no plea of guilty in Mr Rashid’s case, nor any expression of remorse, and the fact that Mr Rashid is a foreign national did not justify mitigation of 25 per cent. Mr Justice McCarthy said the mitigating factors were modest and confined to the fact that Mr Rashid may find prison more difficult than an Irish Caucasian, that he was of previous good character, and had a reasonable work record.

High threshold for intervention met

Finding that the sentencing judge fell into error when fixing the headline sentence of two years, Mr Justice McCarthy said the high threshold for intervention by the Court of Appeal had been met. Mr Justice McCarthy said the offence fell at the lower half of the middle range for offences of this type – the maximum being 15 years in the case of some of the victim’s age.

Quashing the order of the Circuit Court, Mr Justice McCarthy said the appropriate headline sentence was one of five-and-a-half years’ imprisonment, reduced to four-and-a-half years’ post-mitigation. In lieu of suspending any portion of the sentence, Mr Justice McCarthy directed that Mr Rashid be subject to two years’ post-release supervision.